Important Family Code Section 2104 Amendment for 2013!

Posted on Dec 1, 2012 6:35pm PST

PDD'S Must Be Exchanged Within 60 Day's of Each Party's Appearance
in a Dissolution, Legal Separation, or Nullity Action

Effective January 1, 2013,
Family Code section 2104 has been amended to add a very important new subsection, (f). This requires
that the Petitioner serve the Respondent with a Preliminary Declaration
of Disclosure
(FL-142)no later than 60 days after he or she files the Petition for Dissolution of Marriage,
or of a Registered Domestic Partnership. It applies equally to legal separations
and annulment requests.

Similarly, the Respondent must serve the Petitioner his or her own Preliminary
Declaration of Disclosure (PDD) within 60 days of filing their Response.

This is a terrific amendment to section 2104 that will benefit clients
and attorneys alike, even as self-represented parties and represented
parties tend to resent the extra work (and expense) that thoroughly completing
these forms require. Previously no specific date was required for the
exchange of the PDD's which was generally due "after or concurrently
with service of the petition", and in some jurisdictions the court
clerks would not accept an "At-Issue" or other trial setting
request to move the case forward without proof that each party had completed
them, and so had filed with the court the related Declaration of Service
that verifies the exchange
(FL-140).

This meant that one party could stall the other and the proceedings, and
I have witnessed many attorneys and self-represented parties intentionally
drag their feet in getting these done. This often occurs where one party
opposes the dissolution request, or when they have a temporary order that
they like (i.e., a temporary spousal support award that is likely to become
a smaller number once the case reaches the judgment phase).

Although
Family Code section 2107(a) provided a remedy in the form of a motion to compel the completion and
exchange of the other party's PDD - together with mandatory attorney
fees incurred in filing the motion to compel it, the lack of specificity
in terms of a deadline meant that courts were reluctant to award these
sanctions. And, parties who don't have attorneys but were nonetheless
forced to file a motion to compel the other side to meet their disclosure
obligations don't get attorney fees to reimburse their own time and
bother in filing such motions.

The PDD is not just critical because it is a required written disclosure
between separating spouses and RDP's that assures that neither lies
to, or takes advantage of, the other (and it cannot be waived, except
without a court order or where a default judgment is entered), it is a
potential road-map for understanding and resolving the entire case. Unfortunately,
the level of disclosure required by the PDD is still, notwithstanding
the 2013 revisions, significantly less detailed that what must be disclosed
in the Final Declaration of Disclosure (FDD), because the latter requires
a party to attach documents (i.e., bank and credit card statements) and
to give opinions as to community and separate property values, as well
as designating what they may contend is separate verses community property.

As a lawyer, having a detailed PDD allows me at a glance to recall and
know what the case is about, so best practices in my opinion is to treat
the PDD as though it is an FDD for purposes of thoroughness. I will Blog
my views on these issues in more detail in coming weeks.

Very happy holidays to you all from the law firm of Thurman W. Arnold,
III and many thanks for allowing us to be of some small service!

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